YUSI AGUSTINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 828/2019

[2023] HKCFI 1552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 828 OF 2019

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 18 April 2023 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.  In her affirmation filed on 29 May 2023, the applicant said that she is late because she could not do it by herself.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline for her appeal is 3 May 2023. The applicant is late for 26 days. I shall consider the merits of her case.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.  The applicant’s claim was deemed to have been withdrawn upon her application to the Director to cancel her application. She applied to the Director for re-opening of her claim. The Director asked for further information and evidence in writing in support of her application. She failed to accede to the Director’s request and the Director rejected her application for re-opening of her application. She appealed to the Board.

9.  Having considered the evidence, the Board found that she had failed to adduce evidence to show that there was a change of circumstances which she could not reasonably have foreseen and the situation existed even before she withdrew her non-refoulement protection claim. On this basis, the applicant failed to bring herself within the provisions under section 37ZE(3) of the Ordinance and the Board dismissed her appeal.

10.  The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is not any realistic prospect of success in her intended appeal.

11.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.